Austin v. Wilder

• Citation: 26 N.C.App. 229,215 S.E.2d 794
• Decision Date: 18 June 1975
• Docket Number: No. 7418SC1090,7418SC1090
• Parties: Z. W. AUSTIN v. Welles WILDER and Odell Bartlett.
• Court: North Carolina Court of Appeals

Page 794

215 S.E.2d 794

26 N.C.App. 229

Z. W. AUSTIN v. Welles WILDER and Odell Bartlett.

No. 7418SC1090.

Court of Appeals of North Carolina.

June 18, 1975.

Smith, Carrington, Patterson, Follin & Curtis by Marion G. Follin, III, Greensboro, for plaintiff-appellee.

Smith, Moore, Smith, Schell & Hunter by James A. Medford, Greensboro, for defendants-appellants.

PARKER, Judge.

Defendants assign error to the granting of plaintiff's motion for summary judgment. A careful examination of the record, which consists of pleadings and exhibits, answers to interrogatories, and affidavits, discloses that entry of summary judgment for the plaintiff was improper.

Entry of summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' G.S. § 1A--1, Rule 56(c). The party moving for summary judgment 'has the burden of 'clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.' 6 Moore's Federal Practice (2d ed. 1971) § 56.15(8), at 2439.' Page v. Sloan, 281 N.C. 697, 704, 190 S.E.2d 189, 193 (1972).

In determining what constitutes a 'genuine issue as to any material fact,' our Supreme Court has stated that "an issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action . . .. (Citations omitted.)" McNair v. Boyette, 282 N.C. 230, 235, 192 S.E.2d 457, 460 (1972). Applying this test, we find that plaintiff as movant has failed to carry the burden of establishing the lack of a genuine issue of material fact in this case.

Plaintiff based his motion for summary judgment upon the showing that defendants executed the note and the 'Release' as part of the settlement of plaintiff's prior civil action against them. He contends that the defenses set forth in defendants' answer simply constitute an effort to relitigate the prior civil action. In response to plaintiff's motion, defendants filed their joint affidavit in which they stated the following: Plaintiff voluntarily withdrew from any business association with defendants no later than February 1971. Learning that defendants were about to acquire the requisite funds for the apartment project, plaintiff made unfounded demands on defendants for his share of the project. Defendants denied the validity of these demands. In July 1971 defendants and others held an option on land for the apartment project and had obtained in the same month, a period when any type of financing was difficult to secure, a commitment for both a construction loan and permanent financing for the project. Learning that the loan was about to be closed, plaintiff filed his civil action against defendants and filed the notice of lis pendens on the land upon which the apartment project was to be built. This notice of lis pendens, if not removed, would have prevented the loan from being made to defendants. Without the loan, the project would have failed because the time period for exercising the option was expiring and there was no immediately available alternative source of financing. Defendants, lacking time sufficient to oppose the lawsuit or to establish the invalidity of the notice of lis pendens, were forced to accede to plaintiff's demands or face certain and severe economic losses far in excess of the amount which plaintiff demanded. Only because of this 'severe economic duress,' defendants 'signed a number of papers' and transferred the $10,000.00 to plaintiff.

'Facts asserted by the party answering a summary judgment motion must be accepted as true.' Railway Co. v. Werner Industries, 286 N.C. 89, 98, 209 S.E.2d 734, 739 (1974). Applying this rule in the present case, and accepting as true the facts set forth in defendants' affidavit for purposes of reviewing the trial court's action in allowing plaintiff's motion for summary judgment, we find such facts sufficient to establish defendants' defense that their signatures on the note and their payment of the $10,000.00 were the result of duress imposed upon them by wrongful acts of the plaintiff such as to entitle them to relief. Certainly plaintiff had the right in 1971 to assert his original claim by filing suit to recover a money judgment...